[00:00:00] Speaker 02: 24-1427, Dutchville versus Guravich. [00:00:04] Speaker 02: Mr. Murphy? [00:00:06] Speaker 02: Yes, sir. [00:00:06] Speaker 02: Please identify yourself and proceed. [00:00:08] Speaker 01: Thank you, Your Honor. [00:00:10] Speaker 01: David Murphy on behalf of the defendants, officers, Guravich and Weinheimer. [00:00:18] Speaker 01: We're here today because we believe that the trial court's finding of arguable probable cause on the plaintiff's false arrest claim obligated it to also [00:00:29] Speaker 01: may apply that same finding to each of the plaintiff's other claims. [00:00:34] Speaker 01: And this court's review of that determination is de novo. [00:00:39] Speaker 01: Just briefly, I think a background for the purpose of qualified immunity is instructive. [00:00:45] Speaker 01: The United States Supreme Court in Pearson versus Callahan [00:00:49] Speaker 01: recognized that one of the purposes of qualified immunity is to shield officers from harassment, distraction, and liability when they're performing their duties reasonably. [00:01:02] Speaker 01: This court in Medina versus Cram echoed those same sentiments that civil rights cases subject officials to costly and harassing litigation and potentially inhibit the officials from performing their official duties. [00:01:16] Speaker 01: It gives them a right not merely to stand trial, but to avoid the burdens of such pretrial matters as discovery. [00:01:23] Speaker 01: And then lastly, at the earliest possible stage in litigation, the qualified immunity defenses should be litigated and resolved. [00:01:32] Speaker 01: In this case, the trial court found that there was arguable probable cause for the plaintiff's arrest. [00:01:40] Speaker 01: From the outset of this case, at the time of our motion for dismissal, [00:01:45] Speaker 01: motion to dismiss, we argued that there was qualified immunity that these officers were entitled to on every claim that the plaintiff asserted, all four claims. [00:01:56] Speaker 04: Let me just ask you about that because the district court thought that you waived qualified immunity. [00:02:03] Speaker 01: Yeah, correct. [00:02:05] Speaker 04: So how do we have interlocutory appellate jurisdiction [00:02:12] Speaker 04: If, as far as the court, the district court was concerned, it didn't deny your motions based on lack of qualified immunity. [00:02:23] Speaker 04: If the court thought you waived it, how could it be making a qualified immunity determination? [00:02:28] Speaker 01: Well, the district court determined that the defendants did raise qualified immunity on the false arrest claim. [00:02:35] Speaker 04: Yes. [00:02:37] Speaker 04: But not the other claims. [00:02:38] Speaker 01: That's correct. [00:02:39] Speaker 04: And you're arguing the other claims now. [00:02:41] Speaker 01: We're arguing that that finding of arguable probable cause to arrest as a matter of law prohibits the remainder of the malicious prosecution claim, the First Amendment retaliatory claim, and the equal protection claim. [00:03:02] Speaker 04: I see your argument, assuming that qualified immunity squarely [00:03:09] Speaker 04: in front of us, but I guess my question is whether the district court made a qualified immunity ruling on the merits when it said you waived qualified immunity. [00:03:19] Speaker 01: And we disagree with that finding. [00:03:21] Speaker 01: The first half of our, this was briefed in two separate summary judgment motions, a cross motion and a regular motion for summary judgment by the plaintiff. [00:03:33] Speaker 01: And in response to the plaintiff's cross motion, we said the probable cause, and we said this in our motion to dismiss, and again in summary judgment, probable cause is the driving factor here, whether probable cause or arguable probable cause. [00:03:45] Speaker 01: And we said in response to the plaintiff's motion for summary judgment that if probable cause exists, then all of the claims the plaintiff has asserted. [00:03:55] Speaker 02: I follow all that, but how did we get where we are? [00:04:01] Speaker 02: It mystifies me, frankly. [00:04:03] Speaker 02: I mean, after you got a very favorable ruling on arguable probable cause in the first claim, it seems to me that the argument you're making before us should have been made to the district court on a motion for reconsideration. [00:04:20] Speaker 02: Did you do that? [00:04:21] Speaker 02: Did I miss that? [00:04:22] Speaker 02: Because your argument here is probable cause is in every element of every claim, and the court [00:04:32] Speaker 02: You said you argued it. [00:04:34] Speaker 02: The court said it's waived. [00:04:35] Speaker 02: I'd like to know what the district court might have said in response to that argument. [00:04:43] Speaker 01: Well, we would too. [00:04:45] Speaker 01: In fact, we think that by electing not to address it, the court overlooked the important public policy behind... Why didn't you ask for reconsideration? [00:04:57] Speaker 02: This case screams for reconsideration. [00:05:01] Speaker 01: Well, and I would respectfully agree that that would be the alternative remedy is to send this back to the, remanded to the trial court to address that specific issue because it would be a travesty of justice to send the parties to trial on claims that the plaintiff, as a matter of law, cannot prevail on. [00:05:25] Speaker 02: So the... Well, is the legal heir then... I mean, I agree with Judge Matheson. [00:05:31] Speaker 02: The court did not rule on qualified immunity. [00:05:35] Speaker 02: So is the issue on appeal the legal heir of whether it was waived or not? [00:05:45] Speaker 01: That's part and parcel of the appeal. [00:05:48] Speaker 01: Our summary judgment motion, the first half of it, said that the officers are entitled to qualified immunity [00:05:55] Speaker 01: Period. [00:05:56] Speaker 01: It didn't say on just the false arrest claim, on just the malicious prosecution claim, just the retaliatory arrest claim or the equal protection claim. [00:06:06] Speaker 01: It said that they're entitled to qualified immunity. [00:06:10] Speaker 01: And the trial court, we think, placed form over substance. [00:06:17] Speaker 02: I mean, I think the brief, your brief argues plain error by the district court. [00:06:26] Speaker 02: We believe in finding a waiver. [00:06:29] Speaker 01: Is that where we are? [00:06:30] Speaker 01: Yes. [00:06:32] Speaker 01: Because, again, we addressed it in response to the plaintiff's motion for summary judgment and our cross-motion and our reply. [00:06:42] Speaker 01: And the court said, recognizing, even discussing in its order, that the defendants were attempting to assert qualified immunity on all claims, but neglected to address it. [00:06:58] Speaker 01: So we believe. [00:07:00] Speaker 04: Counsel, let me ask you a slightly different question. [00:07:03] Speaker 04: I think I'm following your argument about arguable probable cause as to the retaliatory arrest and malicious prosecution claims, but not so much on the equal protection. [00:07:23] Speaker 04: Could you explain how probable cause are arguable [00:07:26] Speaker 01: probable cause is relevant to the equal protection claim. [00:07:45] Speaker 01: If the trial court found that the reason that the officers arrested the plaintiff was because of a mistaken reading of this sign prohibiting filming at the police station, then that defeats the plaintiff's element of selective enforcement. [00:08:11] Speaker 01: and a discriminatory purpose. [00:08:14] Speaker 01: The trial court has found that the purpose of the arrest was to try and enforce this signage at the police station. [00:08:21] Speaker 04: We also believe... Well, counsel, let me just put it this way. [00:08:25] Speaker 04: If Officer Gurvich arrested Mr. Detrevill because he is black and didn't arrest Mr. Reed because he is white, what difference does it make [00:08:38] Speaker 04: if the presence or absence of probable cause is the same for each. [00:08:44] Speaker 04: It seems that if the arrest was made based on race, whether he had probable cause or not, wouldn't that be an equal protection violation? [00:08:55] Speaker 01: Well, and we believe that that gets to the second prong of our equal protection argument, because in our summary judgment briefing, the first half was devoted to qualified immunity, and then the remaining half was devoted to specific [00:09:08] Speaker 01: incidences that are unique to the remaining three claims, things like malice or selective enforcement. [00:09:17] Speaker 01: And in terms of equal protection claim, there is no record evidence that Officer Gurevich observed this other individual filming at the police station. [00:09:31] Speaker 01: This court, its duty is not on appeal to review the facts and to question the facts found by Judge Brimmer. [00:09:39] Speaker 01: But it is within this court's jurisdiction to look at the facts cited by Judge Brimmer in support of the Equal Protection Clause to determine whether they state a viable claim. [00:09:52] Speaker 04: Well, OK. [00:09:53] Speaker 04: I understand that part of the argument. [00:09:55] Speaker 04: But my focus was on the relevance [00:09:59] Speaker 04: the existence of probable cause or the non-existence. [00:10:03] Speaker 04: And if it's the same as to both of these individuals, then why does it even matter? [00:10:10] Speaker 04: I mean, you're relying on arguable probable cause to get rid of all of these remaining claims. [00:10:16] Speaker 04: And I'm questioning whether you can do that on the equal protection claim. [00:10:21] Speaker 01: Well, and I agree. [00:10:23] Speaker 01: I think that with respect to the Equal Protection Claims specifically, not only is the finding of arguable probable cause. [00:10:31] Speaker 04: OK, wait. [00:10:33] Speaker 04: I'm asking you whether you can legitimately rely on the arguable probable cause to get a different result on appeal on the protection claim. [00:10:44] Speaker 04: You're kind of pivoting over to another argument. [00:10:48] Speaker 04: Let's stick with the probable cause. [00:10:50] Speaker 04: Is that relevant to the equal protection claim? [00:10:53] Speaker 01: And our argument is that that addresses the discriminatory purpose. [00:10:59] Speaker 04: How does it if it's the same as to both individuals? [00:11:02] Speaker 01: Well, and that's why it's a two-part? [00:11:06] Speaker 04: No, I want you to focus on the probable cause. [00:11:09] Speaker 04: I understand your other argument. [00:11:11] Speaker 04: You're making another argument based on the record. [00:11:16] Speaker 04: What I'm having trouble is just your argument that this arguable probable cause determination just automatically wipes out these three claims. [00:11:25] Speaker 04: And my question is, not so fast, what about the equal protection claim? [00:11:29] Speaker 01: And I agree. [00:11:30] Speaker 01: Because equal protection, as you point out, if you had two different individuals, different races, and one was arrested and one wasn't, and there was probable cause for both, that could give rise to an equal protection claim. [00:11:44] Speaker 04: Or lack of probable cause. [00:11:45] Speaker 01: Or lack of probable cause. [00:11:46] Speaker 04: All right, thank you. [00:11:47] Speaker 04: I won't belabor the point anymore. [00:11:49] Speaker 01: No, I appreciate that. [00:11:51] Speaker 01: And that's why we think that the second component is, I mean, we think that it's important that the reason the court found the arrest was because they're trying to enforce a sign, not based on some racial animus. [00:12:03] Speaker 01: But secondly, we believe that the trial court record is [00:12:08] Speaker 01: lacking as a matter of law on the equal protection claim because the court found that Officer Yurovich was working that day and that another individual came and filmed at the police station for a totality of three minutes and that's it. [00:12:24] Speaker 01: That is not sufficient to, that cause requires speculation on the jury's part to determine that since Officer Gurevich was physically in the building that day sometime during those eight hours, that he then somehow observed this other individual. [00:12:40] Speaker 01: He testified he didn't, but that's a credibility issue. [00:12:44] Speaker 01: But the facts that Judge Brimmer relied on for the equal protection claim to find a question of fact, we believe that they're legally lacking. [00:12:57] Speaker 01: And without any other questions, I'll reserve my remaining two minutes. [00:13:01] Speaker 01: You may. [00:13:02] Speaker 01: Thank you. [00:13:09] Speaker 03: Morning, Your Honors. [00:13:10] Speaker 03: My name is Zach Schiffler. [00:13:11] Speaker 03: May it please the court, attorney for plaintiff appellee. [00:13:15] Speaker 03: This case is about our clearly established first-memor right to video record police officers engaged in their official duties while in public. [00:13:22] Speaker 03: This right has been clearly established in this circuit since May of 2019. [00:13:27] Speaker 03: In this court's decision in Irazari, it confirmed this bright-line rule based on six out-of-circuit cases reaching the exact same decision. [00:13:37] Speaker 03: Judge Mastin, in writing for the court in Irazari, you acknowledge that the rule applied with obvious clarity to Irazari's case and that four of those six out-of-circuit cases involved materially similar conduct. [00:13:50] Speaker 03: In describing that materially similar conduct, the court simply said that the common thread was that four of those six cases involved people who were attempting to record police, but were dissuaded from doing so because they were either detained, arrested, or physically deterred. [00:14:04] Speaker 04: Well, counsel, aren't you stuck with the district court's arguable probable cause determination? [00:14:11] Speaker 04: I mean, you won on that one, on the unlawful arrest. [00:14:19] Speaker 03: But so my answer is no. [00:14:24] Speaker 03: And the reason being is because we're here on de novo review regarding qualified immunity. [00:14:29] Speaker 04: You didn't cross appeal that issue. [00:14:32] Speaker 03: No, and I understand. [00:14:33] Speaker 04: And so I'll... And why would we even address it without a cross-appeal from you? [00:14:38] Speaker 04: Because as defendants argued in their brief, if they can... I'm looking for some law on this. [00:14:44] Speaker 04: Why do you think we can even address this issue when you didn't cross-appeal and challenge the arguable probable cause determination? [00:14:56] Speaker 04: You're trying to do it now, but you didn't cross-appeal. [00:14:58] Speaker 03: So the focus of my argument today is not on pendant appellate jurisdiction. [00:15:02] Speaker 03: I recognize that this court is not on pendant appellate jurisdiction. [00:15:05] Speaker 03: The court can reach the substantive issue of arguable probable cause without exercising pendant appellate jurisdiction. [00:15:12] Speaker 04: How? [00:15:13] Speaker 04: Have you gotten any authority for that? [00:15:14] Speaker 03: Yeah, absolutely. [00:15:15] Speaker 03: So the decision tree is very straightforward. [00:15:18] Speaker 03: The district court found that defendants waived qualified immunity for the First Amendment claim. [00:15:23] Speaker 03: If they can establish plain error by saying that the district court should have applied its arguable probable cause decision to the First Amendment claim, then that opens up the de novo review. [00:15:33] Speaker 04: I'm looking for a case, counsel, and I'm not hearing one. [00:15:37] Speaker 03: A case on which point? [00:15:38] Speaker 04: That allows us to address the arguable probable cause issue. [00:15:42] Speaker 04: Well, this is de novo review. [00:15:44] Speaker 04: No, you needed to cross-appeal. [00:15:47] Speaker 04: You lost on that issue. [00:15:49] Speaker 04: Right. [00:15:49] Speaker 04: And if you want to challenge arguable probable cause, you need to bring a cross-appeal. [00:15:56] Speaker 04: You want to challenge it now. [00:15:58] Speaker 04: But that's been the district court decided. [00:16:01] Speaker 03: So then it seems that defendants are simply asking this court to blindly copy and paste that arguable probable cause finding under these three other claims. [00:16:08] Speaker 04: You got a case counsel that we can work with here. [00:16:10] Speaker 03: Can you cite me a case? [00:16:13] Speaker 03: Not a specific one. [00:16:14] Speaker 03: We have plenty in our briefing. [00:16:16] Speaker 03: No, you don't. [00:16:16] Speaker 04: And defendants agree saying that this court... Then if you got plenty there, give me one. [00:16:19] Speaker 04: This court exercises de novo review. [00:16:22] Speaker 04: That is... Can you mention a case, please? [00:16:27] Speaker 04: that supports the proposition that we can address this issue without your having brought a cross-appeal? [00:16:34] Speaker 03: When defendants appeal a qualified immunity, the standard is de novo review. [00:16:39] Speaker 03: So you have no case? [00:16:40] Speaker 03: I don't have a case here on oral argument. [00:16:42] Speaker 02: Thank you, counsel. [00:16:47] Speaker 02: Which brings us to the posture of this appeal. [00:16:54] Speaker 02: The district court found a waiver of qualified immunity. [00:16:58] Speaker 02: So you still have three of your claims that are alive and well before a jury, I guess. [00:17:10] Speaker 02: Shouldn't you just take your win on waiver and go back? [00:17:16] Speaker 02: But then you'll have a problem, won't you, when you get back to district court? [00:17:21] Speaker 02: Because you're stuck with arguable probable cause. [00:17:24] Speaker 02: Depending on how you view the case, it's going to be fatal for two of the three claims, maybe not equal protection. [00:17:32] Speaker 02: I just feel like we're in kind of advisory opinion land in this appeal. [00:17:38] Speaker 03: And I would respectfully disagree. [00:17:40] Speaker 03: And so in the cases where this court has remanded the case back to district court to decide qualifying immunity in the first place, Kearns v. Bader is one that comes to mind. [00:17:49] Speaker 03: That's a highly complicated case with a very novel factual situation. [00:17:53] Speaker 03: That was a sniper who shot down a police helicopter. [00:17:56] Speaker 03: There was forensic testing, search warrants, investigations. [00:17:59] Speaker 03: The court didn't even engage with Prong 2 at all. [00:18:02] Speaker 03: and there was insufficient briefing both at the district court and at the appellate level. [00:18:06] Speaker 03: Although we believe defendants gave qualified immunity short shrift regarding these three claims at the district court, there is a robust discussion, I believe, in the appellate briefing. [00:18:16] Speaker 03: So unlike Kearns, this is not a highly novel factual situation, and the court is not going to be left waiting in the dark without sufficient briefing at the appellate level. [00:18:24] Speaker 03: We discussed arguable probable cause throughout our briefing, both at the appellate level and at the district court. [00:18:31] Speaker 03: And if I may touch real quickly on the second point that has been raised by both Judge Matheson and Judge Timkovich. [00:18:37] Speaker 03: As Judge Matheson pointed out, and actually defendants agreed in the lower court, arguable probable cause, probable cause is not the standard for an equal protection claim. [00:18:46] Speaker 03: That's the easy one to dispel of. [00:18:47] Speaker 03: Malicious prosecution, I do want to point out, also has a different standard of arguable probable cause than unlawful arrest. [00:18:54] Speaker 03: In the malicious prosecution context, arguable probable cause is confined to the four corners of the affidavit. [00:19:00] Speaker 03: Whereas in an unlawful arrest claim, arguable probable cause includes all the information known to the officer at the time of the arrest. [00:19:07] Speaker 03: For a case on point there, I point the court to Wilkins v. De Reyes, which says specifically judicial determinations become a misnomer if information required to support probable cause remains at all times firmly lodged in the officer's head. [00:19:20] Speaker 03: This court cited the Supreme Court case whitely v. Warden, U.S. [00:19:24] Speaker 03: 1971, which also directly supports that probable cause determination, that distinction. [00:19:31] Speaker 03: And so, again, the district court nor this court can simply copy and paste the finding of arguable probable cause from the allowable arrest claim to the malicious prosecution claim. [00:19:41] Speaker 02: Is your bottom line then that you want this panel to decide the arguable probable cause issue? [00:19:50] Speaker 04: Engage in appellate review of that absolutely and I regrettably because and and and clearly established law The argument the prompt to have qualified immunity you want this court to address that because the district court didn't address it [00:20:08] Speaker 03: Arguable probable cause is prone to have qualified immunity for these types of arrests, yes. [00:20:13] Speaker 03: Okay. [00:20:14] Speaker 03: And although I don't have, I regurgitally don't have a case to stand for what I thought was a widely accepted standard of de novo review when considering qualified immunity, I think it would be under that framework that would allow this court to consider arguable probable cause as it relates to the First Amendment retaliation claim. [00:20:30] Speaker 03: Otherwise, the qualified immunity has been waived according to this court's definition of waiver. [00:20:36] Speaker 03: They failed to establish plain error for the malicious prosecution and equal protection claims for the reason I just said. [00:20:42] Speaker 03: Can't copy and paste it over. [00:20:44] Speaker 03: And as this court has said multiple times, a party's failure to establish plain error marks the end of the road for an issue not first presented to the district court. [00:20:52] Speaker 04: But that assumes that they did waive qualified immunity in district court, correct? [00:20:59] Speaker 04: I mean, you're agreeing with the district court's footnote that they waived qualified immunity as to the three [00:21:06] Speaker 04: remaining claims, is that right? [00:21:08] Speaker 04: That's correct. [00:21:08] Speaker 04: You're agreeing with that, but if you go back and look at their briefing, they do make a general statement that they're asserting qualified immunity on all claims. [00:21:21] Speaker 04: It isn't that they didn't say that. [00:21:24] Speaker 03: They make a very highly generalized statement and the thread throughout as they argue both below and on appeal is arguable probable cause. [00:21:34] Speaker 03: And they make that argument based on all the information done to the officers, not specifically the information on the arrest affidavit. [00:21:42] Speaker 03: And they don't separate their clearly established request or their qualified immunity request with regard to the equal protection claim. [00:21:52] Speaker 04: Well, in their reply in support of cross-motion for summary judgment right on the first page, defendants are entitled to qualified immunity, which precludes each of plaintiff's claims. [00:22:08] Speaker 04: That doesn't sound like a waiver. [00:22:11] Speaker 03: That sounds like a very cursory attempt to use a judicially created doctrine in order to overcome constitutional rights. [00:22:17] Speaker 04: But it doesn't sound like a waiver. [00:22:19] Speaker 03: In this court's vernacular, I would describe that as a forfeiture. [00:22:22] Speaker 04: It doesn't sound like a forfeiture. [00:22:24] Speaker 04: They said it right in the beginning of their brief. [00:22:28] Speaker 03: And respectfully, I think that they're required to do more if they want to use judicially created immunities to overcome constitutional rights. [00:22:35] Speaker 04: In their opening submission, Officer Gurvich and Officer Weinheimer are entitled to qualify an immunity and judgment in their favor. [00:22:46] Speaker 04: That's the heading that leads to the discussion of all the remaining claims. [00:22:53] Speaker 04: And they discussed arguable probable cause relative to the first claim. [00:23:00] Speaker 04: What do they need to do? [00:23:01] Speaker 04: Cut and paste the same argument three times over? [00:23:04] Speaker 04: Have they truly waived or forfeited this argument? [00:23:07] Speaker 03: The district court found that. [00:23:09] Speaker 04: I know the district court did. [00:23:10] Speaker 04: I'm asking you, why should we say that they waived [00:23:13] Speaker 03: because they gave it a cursory attempt. [00:23:15] Speaker 03: If they want to use this doctrine to overcome constitutional rights, they need to put some meat on those bones. [00:23:20] Speaker 04: So inadequately briefed, is that what you're telling me? [00:23:22] Speaker 04: That's correct. [00:23:23] Speaker 04: All right. [00:23:24] Speaker 00: Counsel, before you move on, in response to Judge Matheson's question to you, emphasized, I think, three or four times that this is a judicially created doctrine. [00:23:35] Speaker 00: Are you questioning qualified community as a doctrine, its legitimacy? [00:23:41] Speaker 00: Are you questioning that before us? [00:23:43] Speaker 03: I mean I echo comments that have been made I believe by Justice Thomas and Justice Sotomayor that there are reasons to [00:23:53] Speaker 03: question qualified immunity, that's not currently before this court. [00:23:57] Speaker 03: I'm simply reminding everyone that on the scales of justice, when we're using qualified immunity, when we find a constitutional violation, let's say that the officers are off the hook on prong two, we are necessarily weighing these judicially created immunities more than constitutional rights. [00:24:13] Speaker 03: That's something we need to be cognizant of when we're doing this exercise. [00:24:16] Speaker 03: That's the reason I phrase it like that. [00:24:18] Speaker 00: So how does that play out in our decision? [00:24:24] Speaker 00: Are you suggesting we should put the finger on the scale against qualified immunity in this case? [00:24:33] Speaker 00: I mean, what are you asking us to do with that point that you're making? [00:24:37] Speaker 03: to hold parties to task when they seek to raise it and not allow mere cursory magic phrases of, we raise qualified immunity, now let's shift a 20-page burden over to plaintiff for him to address it. [00:24:50] Speaker 04: It does shift the burden, doesn't it? [00:24:52] Speaker 03: It certainly does. [00:24:54] Speaker 03: But the point I'm making is that [00:24:56] Speaker 03: If we're going to be using this doctrine, they need to use more than just magic words. [00:25:02] Speaker 03: They need to actually discuss and explain why it's not clearly established and to trigger our burden to show why it is clearly established. [00:25:10] Speaker 04: Isn't the invocation of qualified immunity all that is needed to shift that burden to you? [00:25:17] Speaker 04: Isn't that what the law provides? [00:25:19] Speaker 03: District courts have repeatedly found that qualified immunity is waived, or in this court's vernacular, forfeited when they offer... Got another case for me, counsel? [00:25:28] Speaker 04: You're pretty good at making the arguments, but I don't know where the authority's coming from. [00:25:33] Speaker 03: I don't have one handy. [00:25:34] Speaker 03: I know we have it in our briefs, though. [00:25:37] Speaker 02: Why don't you tell me what the fatal flaw is in the district court's determination of arguable probable cause? [00:25:44] Speaker 03: Sure. [00:25:44] Speaker 03: There are two, actually. [00:25:46] Speaker 03: It loses both ways. [00:25:47] Speaker 03: And so, arguable probable cause is just another way of saying the officer's belief in probable cause rested on an objectively reasonable but mistaken belief. [00:25:57] Speaker 03: And so, there are, of course, a mistake of law and a mistake of fact. [00:26:00] Speaker 03: I would like to take each of those in turn. [00:26:02] Speaker 03: Regarding a mistake of fact, [00:26:04] Speaker 03: or excuse me, regarding a mistake of law. [00:26:07] Speaker 03: To trigger that, the court requires two things. [00:26:09] Speaker 03: First, the law issue must be ambiguous. [00:26:13] Speaker 03: Two, the officer's mistaken interpretation of that ambiguous law must be objectively reasonable. [00:26:19] Speaker 03: A case that supports this proposition is the Supreme Court case high in the North Carolina. [00:26:24] Speaker 03: Justin Kagan's concurrence in that opinion is particularly instructive. [00:26:28] Speaker 03: She says that for a mistake of law to be objectively reasonable, [00:26:33] Speaker 03: the law must be, quote, genuinely ambiguous and, quote, pose a quite difficult question of interpretation. [00:26:41] Speaker 03: Two of this court's opinions also echo or support that exact position, Fogarty and Mocheck. [00:26:48] Speaker 03: Judge Timkovich, I know you wrote the opinion for Mocheck. [00:26:51] Speaker 03: The court offered a very thorough discussion of New Mexico's stop and identify statute, acknowledging that there was clear ambiguity in those decisions and therefore in the law. [00:27:01] Speaker 03: And then the court cited to Fogarty with the parenthetical directly saying that in order to have an objectively reasonable mistake of law, there has to be ambiguity in the law. [00:27:11] Speaker 02: Do you think under the Colorado statute, could the police station's policy, I mean, we're debating whether the porch is in or out, right? [00:27:23] Speaker 02: To some extent, if the policy said, for purposes of this policy, [00:27:30] Speaker 02: the porch is considered part of the police station for the video policy. [00:27:38] Speaker 02: And if it said that, would that have been a basis for the police to act the way they did here? [00:27:48] Speaker 03: I hesitate because, yeah, they would be given direct guidance as far as how to define the word in to the extent that's an ambiguous word that needs definition. [00:27:58] Speaker 03: I hesitate, though, because of the other objective facts related with it. [00:28:02] Speaker 03: That is that there was one door to the police station. [00:28:05] Speaker 03: This porch, this awning in front of it was unenclosed. [00:28:08] Speaker 03: The only sign prohibiting video recording was on the interior window directly adjoining the only door allowing entry into it. [00:28:15] Speaker 03: There was not a sign on the exterior window of this awning, this porch, and of course there were no other signs elsewhere on the property prohibiting video recording. [00:28:23] Speaker 03: And I mentioned that part, no other signs on the property, because Officer Gurvich told Mr. Getchibold during the incident, there's no video recording on our property. [00:28:33] Speaker 03: He didn't say there's no video recording in the police station. [00:28:35] Speaker 03: He didn't say there's no video recording, or you can continue video recording just a few steps back. [00:28:40] Speaker 03: He said no video recording on our property. [00:28:43] Speaker 02: I'm sorry. [00:28:43] Speaker 02: Just last question. [00:28:44] Speaker 02: For purposes of your argument, would it have mattered if the policy was on the porch window so that a visitor would have seen that? [00:28:57] Speaker 02: disclaimer before entering into the partially enclosed porch. [00:29:02] Speaker 02: Would that matter for purposes of your argument? [00:29:04] Speaker 03: Yes, absolutely. [00:29:05] Speaker 03: It's like putting a no trespassing sign in a window and expecting people not to cross the fence in order to surrounding the home. [00:29:12] Speaker 03: And so if I may just make a last comment to wrap up. [00:29:14] Speaker 03: Yeah, briefly. [00:29:15] Speaker 03: And so we believe that the defendants waive their qualified immunity argument for malicious prosecution and equal protection. [00:29:23] Speaker 03: And because the law was not ambiguous, they cannot find shelter under a reasonable mistake of law theory. [00:29:29] Speaker 03: And because the law was not, or because their mistake was not objectively reasonable, such that no reasonable fact finder would find for plaintiff, it is also inappropriate to find that they made a reasonable mistake of fact at summary judgment. [00:29:42] Speaker 01: Thank you counsel We had some rebuttal yes So just a couple of points one is that I would know there was some discussion about requiring the use of probable cause and [00:30:03] Speaker 01: in First Amendment retaliation cases. [00:30:08] Speaker 01: In the Stone Cipher decision, footnote seven, the court talks about how there can be, excuse me, in malicious prosecution claims, the court talks about how [00:30:19] Speaker 01: A malicious prosecution claim can have additional elements, like 14th Amendment due process considerations. [00:30:26] Speaker 01: But in this case and in that StoneCipher case as well, both involve just the issues surrounding the initial arrest. [00:30:32] Speaker 01: And this court said in StoneCipher, in that circumstance, the appropriate framework to use is the Fourth Amendment analysis. [00:30:42] Speaker 01: And then lastly, I would just wrap up by saying that there's been talk about and questions about waiver. [00:30:48] Speaker 01: I will just simply point out that the defendants raised the issue of qualifying immunity in their answer. [00:30:54] Speaker 01: And so this gets back to my public policy point earlier that, and Judge Brimmer pointed this out in a footnote in his order saying that for summary judgment purposes, there's [00:31:07] Speaker 01: He believes there is a waiver of qualified immunity, which means that we then are back to the point where we try the case, close the plaintiff's evidence, waste the jury's time, waste the court's time, we move for a directive of urge. [00:31:19] Speaker 01: And the court's going to be obligated to issue a directive of urge. [00:31:24] Speaker 02: All right, counsel, thank you. [00:31:25] Speaker 02: Appreciate your arguments. [00:31:27] Speaker 02: The case is submitted and the counsel are excused.